154 days in detention: Whither justice?

Leading civil society, media rights and social justice groups and respected citizens have questioned the continued detention of journalist J.S. Tissainayagam and two others under emergency laws.

A statement issued by these groups and people describes the continued detention of the three as an affront to justice and call on the authorities to release them without further delay. The statement said:

More than 150 days of detention without charges: Release of Mr. J.S Tissainayagam, Mr. N. Jasiharan and Mrs. Valarmathy immediately

Tissainayagam (R) and Jasiharan being taken to courts

Senior journalist, Sunday Times columnist and editor of the website, J. S. Tissainayagam remains in custody without specific charges being brought against him for more than 150 days, although the Attorney General's Department informed the Supreme Court on July 11 that investigations were over.

The AG's department obtained time till the August 20 to report back to courts on the status of the investigations and the next course of action. To this date there has been no evidence being produced in court justifying either the arrests or the detentions.

Mr. Tissainayagam was arrested and detained on March 7 by the Terrorist Investigation Division (TID). N. Jasiharan, owner of E-Kwality press on which premises Mr. Tissainayagam was renting office space, and Mr. Jasiharan's wife, Valarmathi were detained on March 6. They have all since then been kept in detention under Emergency Regulations.

This is a flagrant violation of a fundamental tenet of Sri Lankan law that protects citizens from arbitrary arrest and detention, and that guarantees equality before the law for all citizens, regardless of his or her ethnicity or race.
The arrest and detention of Mr. Tissainayagam, Mr. Jesiharan and Ms. Valarmathy have been without adherence to basic safeguards such as the production of valid detention orders at the appropriate time and without their production in court as required in terms of the emergency regulations themselves. They have been denied the right of regular access to lawyers and family members. On the two occasions that lawyers have been able to meet Mr. Tissainayagam, it has been with a Police officer present, denying the privacy and confidentiality in seeking legal counsel to which he is entitled by law.

As recently as in 2005, the UN Committee against Torture in its Concluding Observations on Sri Lanka reaffirmed that confidential access to legal counsel was basic to the provision of safeguards against abuse. In addition, all three detainees have been denied timely access to medical attention, resulting in their deteriorating health condition. Furthermore, there are allegations of torture of at least one of the three detainees. On June 23, Mr. Jesiharan revealed in open court that he had been assaulted by TID officers for having told the Judicial Medical Officer the extent of his injuries, inflicted on him by the police.

The arrest and the detention of these persons under emergency regulations reiterate a concern that we have consistently voiced: that in many cases, the process as followed infringes on a basic principle consistently articulated by the Supreme Court, namely that the Secretary to the Ministry of Defence is authorized to arrest and detain a person upon material submitted to him or upon such further additional material as may be called for by him, only where he is satisfied that such a step is necessary in order to prevent such person from acting in any manner prejudicial to national security or to the maintenance of public order.

As the Court has stated, the notion of reasonableness cannot be negated to the point where the essence of the safeguard secured by Article 13 (1) of the Constitution is abrogated. It is our view that the circumstances and context of Mr Tissainayagam's arrest and detention, as well as the detention of his colleagues, lack all the requisite aspects of reasonable arrest and detention.

The onus is on the Attorney General to demonstrate that there is respect and adherence to the Constitution and national laws by presenting whether there is credible and substantial evidence to further detain the three. It is also an opportune moment for the Attorney General to demonstrate that the arrests and detentions are not motivated by other means including ethnic or political. The onus is upon the Attorney General to demonstrate that the arrests and detentions are in accordance with the law and that due process has been followed. The Attorney General has the power to decide whether to pursue a case if there is sufficient credible evidence or whether to suspend investigations. He should only be dictated by the evidence and not by other factors or persons.

We are also concerned in particular about the arrest and detention of Mr. Tissainayagam because of the impact that this has on broader issues of the freedom of expression and media freedom in the country. As civil society organizations committed to the democratic principles of human rights and freedoms including the freedom of expression, we feel that Mr. Tissainayagam's arrest has reaffirmed the fear prevailing within the media community in Sri Lanka today, that publication of any opinion that provides critical analysis of the situation in the country could lead to persecution, arbitrary arrest, disappearance and even assassination. The sad fact that nine media persons have been killed in Sri Lanka over the past two years and that many more have been subjected to physical and mental harassment and assault bears out our concerns regarding Mr. Tissainayagam. Investigations into these crimes against journalists have gone nowhere. The perpetrators of these violations go unpunished, and the cycle of terror and impunity which grips contemporary Sri Lanka is strengthened.

It is in this context that we call upon the State to remedy this grave injustice to a journalist who was engaged in expressing his opinions on the state of human rights in the country within the boundaries of the law.
The continued detention of Mr. Tissainayagam, Mr. Jasiharan and Ms. Jasiharan, without charges is an affront to justice and we call for due process and the release of all the detainees without further delay.

The signatories to the statement

Asian Human Rights Commission
Association of Family Members of the Disappeared
Centre for People's Dialogue
Centre for Policy Alternatives
Christian Alliance for Social Action
Civil and Political Rights Program, Law & Society Trust
Free Media Movement
Federation of Media Employees Trade Union
Home for Human Rights
Human Rights Centre, Kandy
Human Rights in Conflict Program, Law & Society Trust
IMADR Asia Committee
INFORM Human Rights Documentation Centre
Mothers and Daughters of Lanka
Muslim Women's Research and Action Forum
National Peace Council
Right to Life Human Rights Centre
Rights Now Collective for Democracy
Sri Lanka Muslim Media Forum
Sri Lanka Tamil Journalists Alliance
Sri Lanka Working Journalists Association
Women and Media Collective
Women's Support Group, Sri Lanka
The Ven G S K Francis, Archdeacon of Kurunegala and Commissary for the Anglican Bishop of Kurunegala
The Ven Dhiloraj Canagasabey, Archdeacon of Nuwara Eliya and Commissary for the Anglican Bishop of Colombo
Rev. Fr S. Maria Anthony, sj, President, Conference of Major Religious Superiors
Rev. Fr. Praveen, OMI, Centre for Peace and Reconciliation
Dr. Hasbullah, University of Peradeniya
Dr. Jehan Perera
Mr. Herman Kumara
Mr. Lal Wijenayake
Mr. Dharmasiri Bandaranayake

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